Alan Gura
By Dave Workman | Senior Editor
In a rare court foray, the Citizens Committee for the Right to Keep and Bear Arms scored a major victory in federal district court in Texas when a judge ruled that current law requiring residency for handgun transfers is “unconstitutional on its face.”
U.S. District Court Judge Reed O’Connor of the Northern District of Texas, Fort Worth Division noted in his 28-page opinion that “the federal interstate handgun transfer ban burdens conduct that falls within the scope of the Second Amendment.” Significantly, the judge applied strict scrutiny in formulating his ruling.
CCRKBA Chairman Alan Gottlieb was elated, and he quipped to TGM that “I’m on ‘Cloud 9mm’.” He said CCRKBA’s case was financially supported by the Second Amendment Foundation. SAF is CCRKBA’s sister organization, and is typically point on such legal actions.
CCRKBA and the individual plaintiffs, Texas resident Fredric Russell Mance, Jr., and Tracey Ambeau Hanson and Andrew Hanson, both of Washington, D.C., were represented by Virginia attorney Alan Gura and Texas attorney William B. “Bill” Mateja with Fish & Richardson in Dallas.
The case is known as Mance v. Holder, because Attorney General Eric Holder is one of the defendants.
At issue is a federal requirement under the Gun Control Act of 1968 that prohibited interstate handgun transfers to citizens who are not residents of the state in which the transaction occurs. Rifles and shotguns may be legally transferred to non-state residents, but not handguns. CCRKBA argued that the prohibition makes no sense in the advent of the National Instant Check System (NICS), which went on line under provisions of the 1993 Brady Law.
The Hansons were not able to complete a handgun purchase from Mance because of this transfer prohibition, which places an undue burden on a citizen’s right to exercise the Second Amendment.
The judge’s ruling seemed to underscore that argument, noting, “The federal interstate handgun transfer ban is unique compared to other firearms restrictions because it does not target certain people (such as felons or the mentally ill), conduct (such as carrying firearms into government buildings or schools), or distinctions among certain classes of firearms (such as fully automatic weapons or magazine capacity).
Alan Gottlieb
“Instead,” Judge O’Connor wrote, “the federal interstate handgun transfer ban targets the entire national market of handgun sales and directly burdens law-abiding, responsible citizens who seek to complete otherwise lawful transactions for handguns.”
The judge further commented that, “By failing to provide specific information to demonstrate the reasonable fit between this ban and illegal sales and lack of notice in light of the Brady Act amendments to the 1968 Gun Control Act, the ban is not substantially related to address safety concerns. Thus, even under intermediate scrutiny, the federal interstate handgun transfer ban is unconstitutional on its face.”
“This case involved an important Constitutional question,” Mateja said. “While we expect the government to appeal, we are confident that the 5th U.S. Circuit Court of Appeals will agree with Judge O’Connor’s sound ruling.”
“Our lawsuit strikes at the heart of a debate that has been ongoing for several years, since the creation of the National Instant Check System (NICS),” Gottlieb said. “With the advent of the NICS system, it makes no sense to perpetuate a ban on interstate transfers of handguns.”
Gura, speaking from Virginia, noted in an e-mail, “It is bizarre and irrational to destroy the national market for an item that Americans have a fundamental right to purchase. Americans would never tolerate a ban on the interstate sale of books or contraceptives. And Americans are free to buy rifles and shotguns outside their state of residence, so long as the dealers respect the laws of the buyer’s home state. We’re gratified that the Court agreed that handguns should be treated no differently.”
Mateja and Gura both indicated that the government is likely to appeal, but they are confident the O’Connor ruling will be upheld. Gottlieb is equally confident, and if that is the case, one of the major gun control provisions of the past half-century could be history.
